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2014 DIGILAW 268 (PNJ)

Karam Singh v. State of Punjab

2014-02-04

REKHA MITTAL

body2014
Mrs. Rekha Mittal, J.: - By way of this order, I shall dispose of Crl. Revision No. 1455 of 2013 titled “Karam Singh v. State of Punjab and another” and Crl. Revision No. 2638 of 2013 titled “State of Punjab vs. Gurmeet Singh” as these are the off shoot of same order dated 21.1.2013 passed by the Additional Sessions Judge (Fast Track Court), Patiala and involve adjudication of identical questions of law and facts. 2. Karam Singh initiated criminal proceedings against Gurmeet Singh and Akaljit Kaur on the allegations that the accused executed an agreement to sell dated 25.1.2006 in favour of the complainant for sale of land measuring 28 kanals 07 marlas at the rate of Rs. 12,05,000/- per acre i.e. for total consideration of Rs. 42,70,500/-. At the time of execution of agreement, accused received an amount of Rs. 6,00,000/- towards earnest money. He also received an amount of Rs. 30,00,000/- on 19.6.2006 on his behalf as well as on behalf of his co-accused Akaljit Kaur on the pretext that they were to repay loan of the bank against which land in question was mortgaged. Later, it was found that loan amount was Rs. 2,00,000/- only. The last date for execution of sale deed was 7.7.2006 but the loan amount was not paid by the accused up to 17.12.2006. The accused refused to execute the sale deed in favour of the complainant though they had already received an amount of Rs. 36,00,000/- out of total sale consideration of Rs. 42, 70,500/-. 3. On completion of investigation of FIR No. 138 dated 11.10.2007 registered at Police Station, Sadar Patiala for offence punishable under Sections 406, 420, 379 of the Indian Penal Code (for short “IPC”), challan was presented in the Court of Judicial Magistrate Ist Class, Patiala. Gurmeet Singh and Akaljit Kaur were charge sheeted for committing offence punishable under Section 420 IPC to which they pleaded not guilty and claimed trial. Gurmeet Singh (respondent herein) preferred a revision petition before the Court of Sessions against order dated 11.9.2009 passed by the Judicial Magistrate, framing charge against the accused. The revision petition was accepted by the Court and the accused were ordered to be discharged. 4. Gurmeet Singh (respondent herein) preferred a revision petition before the Court of Sessions against order dated 11.9.2009 passed by the Judicial Magistrate, framing charge against the accused. The revision petition was accepted by the Court and the accused were ordered to be discharged. 4. Feeling aggrieved by order dated 21.1.2013 passed by the Additional Sessions Judge (Fast Track Court), Patiala, one petition has been preferred by complainant Karam Singh and the other petition has been filed by the State of Punjab. 5. Counsel representing Karam Singh complainant, would submit that the Court in revision committed a serious error in holding that there is no justification to frame charge against the accused as no element of cheating is made out according to the allegations and, therefore, the order passed by the trial Magistrate is liable to be set aside. To bring home his contention, it is argued that the land which was agreed to be sold in favour of Karam Singh was mortgaged with the bank for securing loan and the factum of mortgage was never brought to the notice of the complainant at the time of entering into agreement to sell. It is further submitted that the petitioner was not obliged to make any further payment to the accused prior to the date fixed for registration of the sale deed which was initially fixed for 12.6.2006 and later extended to 7.7.2006 but respondent Gurmeet Singh on 19.6.2006 received another amount of Rs. 30,00,000/- on a false representation that the amount was required for discharging the liability of the bank and to redeem the mortgage. It is argued with vehemence that the outstanding loan of the bank was only Rs.2,00,000/- but the accused extracted an additional amount of Rs. 30,00,000/- from the complainant on a false pretext and even thereafter they did not get the land redeemed before the date fixed for registration of sale deed and the outstanding loan of the bank was not cleared upto 17.12.2006. 6. Another submission made by counsel is that the accused filed a petition (CRM-M- 4743 of 2008) wherein they admitted receipt of another amount of Rs. 30,00,000/- but in the written statement filed by the accused in the proceedings pending before the civil court at Patiala for specific performance of agreement to sell dated 25.1.2006, they have denied receipt of Rs, 30,00,000/-. 30,00,000/- but in the written statement filed by the accused in the proceedings pending before the civil court at Patiala for specific performance of agreement to sell dated 25.1.2006, they have denied receipt of Rs, 30,00,000/-. It is argued by counsel that keeping in view the conduct of the accused concealing the factum of mortgage of the land in favour of the bank, receiving an amount of Rs. 30,00,000/- on 19.6.2006 on false pretext to clear the outstanding liability of the bank and above all denying the receipt of Rs. 30,00,000/- in their reply in the civil proceedings, certainly indicate that an element of cheating is involved and, therefore, the trial court had rightly framed charge for offence punishable under Section 420 IPC but the Court in revision has wrongly set aside the said order and discharged the accused. 7. Counsel for the State of Punjab has endorsed the contentions raised by counsel for the complainant with the submissions that the order passed by the Court in revision may be set aside and the accused should be directed to stand trial in accordance with law in view of charge sheet framed by the trial court. 8. Counsel for the respondent (accused therein), on the contrary, would argue that the civil dispute is being given colour of criminality to be used as a pressure tactic for transfer of ownership of the land in dispute. The complainant has already resorted to appropriate proceedings before the civil Court seeking specific performance of the agreement to sell and the accused would be bound by the decision rendered in those proceedings. It is further submitted that the allegations levelled against the accused, at best, gives rise to civil dispute and the complainant has rightly taken recourse to proceedings before the civil court. 9. I have bestowed my consideration to the rival submissions made by counsel for the parties and gone through the case file. 10. The allegations set up in the complaint made by petitioner Karam Singh make it evident that an agreement to sell was allegedly executed between the petitioner and Gurmeet Singh son of Asa Singh and Akaljit Kaur widow of Jarnail Singh for sale of land measuring 28 kanals 07 marlas at the rate of Rs. 12,05,000/- per acre (08 kanals) along with certain other rights detailed in the agreement to sell. The accused received an amount of Rs. 12,05,000/- per acre (08 kanals) along with certain other rights detailed in the agreement to sell. The accused received an amount of Rs. 6,00,000/- towards earnest money. The sale deed was agreed to be executed on 12.6.2006 but later the date was extended upto 7.7.2006. As per allegations, Gurmeet Singh accused received another amount of Rs. 30,00,000/- on 19.6.2006 on the pretext to clear the liability outstanding towards the bank with whom the land in question stood mortgaged. 11. The main plea of the petitioner is that as the accused did not disclose the factum of land being mortgaged with the bank for securing loan, at the time of execution of agreement to sell on 25.1.2006, the accused had a deceitful intention at the inception of the transaction. Another plea is that the accused received an amount of Rs. 30,00,000/- on false pretext to clear the liability towards the bank though the outstanding liability was only Rs. 2,00,000/- which was not cleared by the accused up to 17.12.2006. Counsel for the petitioner has also made a feeble attempt to stake his claim on the basis of subsequent events in regard to admission of the accused in the proceedings in Criminal Misc. No. M- 4743 of 2008 qua receipt of Rs. 30,00,000/- but denial of receipt of that amount in the written statement filed in the civil suit. 12. A perusal of the agreement to sell (annexure P-1) would show that it makes specific reference that if there is any governmental or nongovernmental loan on the said land, we (vendors) will be bound to pay the same before the agreed date. The plea of the petitioner is that there was an outstanding liability of Rs. 2,00,000/- payable to the bank with whom the land was mortgaged. As there was a clear understanding between the parties that the vendors shall be liable to pay any governmental or nongovernmental dues outstanding towards the land, it is difficult to believe that the vendors are guilty of concealing a fact with a dishonest intention to cheat the complainant. The petitioner paid another amount of Rs. 30,00,000/- on 19.6.2006. The petitioner did not place on record the document in regard to receipt of said amount. However, during course of arguments, counsel for the petitioner produced photo copy of the agreement to sell with receipt on the reverse side of third page of the agreement. The petitioner paid another amount of Rs. 30,00,000/- on 19.6.2006. The petitioner did not place on record the document in regard to receipt of said amount. However, during course of arguments, counsel for the petitioner produced photo copy of the agreement to sell with receipt on the reverse side of third page of the agreement. Perusal of the receipt shows that on 19.6.2006, the parties agreed to extend the time for registration of the sale deed up to 7.7.2006 and Gurmeet Singh being paid another amount of Rs. 30,00,000/-. The receipt does not contain any reference that the payment was made to Gurmeet Singh for discharging the liability of the bank. 13. So far as the plea of the petitioner that the accused have taken a contradictory stand in the written statement with regard to non-receipt of Rs. 30,00,000/- viz-a-viz their plea before this court in the aforesaid proceedings, any such subsequent conduct of the accused is not at all sufficient to satisfy the ingredients of offence under Section 420 IPC. The petitioner shall always be at liberty to take benefit of the said admission at the appropriate stage in the proceedings pending in the Civil Court. 14. Keeping in view the above, I concur with the findings of the Court in revision that the civil dispute has been tried to be given colour of criminal liability with an intent to put pressure upon the accused to succumb to the terms and conditions of the petitioner statedly working as a property dealer. 15. The Hon’ble Supreme Court of India in ‘Murari Lal Gupta v. Gopi Singh, (2006) 2 SCC (Cri) 430 held as quoted hereinbelow:- “Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averments so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuance to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell cas entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurize the petitioner for coming to terms with the respondent.” 16. The facts and circumstances of the present case when examined in the light of observations made by the Hon’ble Supreme Court of India, I do not think it to be a fit case wherein any intervention in the order passed by the Court in revision, is warranted. 17. In the result, the petitions are dismissed leaving the parties to bear their own costs.